Cosgriff v. Dewey — 34 N.Y.S. 999

Majority

p. 999

COSGRIFF v. DEWEY.

(Supreme Court, General Term, Second Department.

July 26, 1895.)

Headnote

Appeal—Interlocutory Order.

An order denying motion to dismiss complaint, and appointing a referee to take proof of amount and value of rock removed by defendant from premises described in complaint, and of the expense incident thereto, is interlocutory, and not appealable.

Appeal from special term, Rockland county.

Action by Andrew Cosgriff and others against William Dewey for an accounting of the rock quarried by defendant on premises belonging to the parties as tenants in common. From an order, defendant appeals.

Appeal dismissed.

Argued before DYKMAN and PRATT, JJ.

A. S. Tompkins, for appellant

Irving Brown, for respondents.

This is an appeal from an order denying the motion of the defendant to dismiss the complaint upon the trial, and appointing a referee to take proof of the amount and value of the rock quarried or removed by the defendant from the premises referred to in the complaint, and of such material sold by him subsequent to the 1st day of March, 1892; also of the expenses of quarrying, removing, and selling the same, and of the profits thereof, and report to this court with his opinion. The order so entered is an interlocutory order, under which testimony is to be taken for the information of the court. Upon the coming in of that testimony the court will enter a final judgment. No appeal can be taken from an order made upon a ruling of the trial judge "during the trial. All exceptions to such rulings are presented by the appeal from the final judgment. This appeal from the interlocutory order is premature, and must be dismissed.